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Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA
Before: Shri N.V.Vasusdevan & Shri Waseem Ahmed
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the Revenue is against the order of Commissioner of Income Tax (Appeals)-I, Kolkata dated 14.06.2013. Assessment was framed by ITO Ward-3(4), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 15.12.2010 for assessment year 2005-06. Grounds raised by Revenue are reproduced below:- “1. That on the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in allowing relief to the assessee on account of labour charges of Rs.61,64,068/- added u/s. 40(a)(ia) of the IT Act.
That on the facts and in the circumstances of the case, the Ld. CIT(A) is not justified iin ignoring the proposal of the AO made in the remand
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 2 report after verifying the issue, to disallow certain portion of the labour charges paid out of Rs.43,18,532/-.
That on the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in allowing relief to the assessee on account of advertisement expenses of Rs.7,18,401/- added u/s. 40(a)(ia) of the IT Act.
That on the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in allowing relief to the assessee on account of consultancy charges of Rs.6,93,400/- added u/s. 40(a)(ia) of the IT Act.
That the Department craves leave t add, alter or modify any ground of appeal during the hearing.”
Brief facts of the case are that the assessee in the present case is a Private Limited Company engaged in the business of manufacturing, erection, installation and selling of steel structures. For the year under consideration proceedings u/s 147 of the Act were initiated.
First issue raised by the Revenue is regarding the deletion made by the Ld.CIT(A) for labour charges amounting to Rs.61,64,068/- only.
The Assessing Officer during the course of assessment proceedings disallowed the labour charges for an amount of Rs. 61,64,068/- by invoking the provisions of Section 40(a)(ia) of the Act. It was observed by the AO that the assessee has made payment to various parties as labour charges without deducting TDS under section 194C of the Act. The amount paid to these parties were more than the prescribed limit of Rs.50,000/- per annum as specified under section 194 of the Act. However the assessee claimed that the amount paid to the parties as labour charges includes the material cost as well. No party has been paid more than Rs.20,000/- in one short of payment as well as not more than Rs.50,000/- in a year. Thus, assessee is not liable to deduct TDS on account of payment of labour charges. The AO asked the assessee to bifurcate the amount of cost of material and labour charges paid to these parties and produce the bills and vouchers to substantiate its claim.
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 3 But the assessee could not produce the same and therefore the AO disallowed the expense of labour charges amounting to Rs 61,64,068/- u/s 40(a)(ia) of the Act and added to the total income of the assessee.
Aggrieved assessee preferred an appeal before Ld. CIT(A) where it was submitted by the assessee that the labour expenses claimed by it are inclusive of purchase of material. The details of purchase of material along with labour expenses are given as under: S.No Name Material Handling Total Charges 1 Machfeb Engineering 61526 6755 68281 2 Hangsadhar Roy 178732 19796 198528 3 C.D. Enterprises 969452 48978 1018430 4 Hemanta Roy 312967 34632 347599 5 Satya Roy 61386 5923 67309 6 United Engineering Services 625024 48232 673256 7 Ananga Roy 60376 6325 66701 8 Kiron Roy 331788 35968 367756 9 Ajimal & Co. 222585 24102 246687 10 Satish Chandra Roy 725104 49125 774229 11 Maa Durga Enterprises 1458301 46254 1504555 12 Nimai Singha 693170 49568 742738 13 J. Enterprise 79275 8725 88000 Total 5779686 384383 6164069
The AO on test check basis got the details submitted by the assessee cross verified with the parties by issuing the notice under section 133(6) of the Act which was confirmed by those parties. Besides the above the Inspector of income tax was also deputed to inspect the transaction of purchase and labour expenses as claimed by the assessee. Inspector has submitted a positive report after verifying the necessary details. Accordingly, the Ld. CIT (A) deleted the addition made by AO by observing as under:- “From the verification report it is evident that the assessee had paid Rs. 61,64,069/- to 13(thirteen) parties which included purchase of materials for Rs.57,79,680/- and handling charges for Rs.3,84,383/- paid to these 13 parties and section 194C was not applicable accordingly on this purchase of materials which were required to be purchased as per the execution of construction jobs for which the appellant had credited Rs.
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 4 4.21 crores in the P&L for financial year. And regarding the handling charges paid to these 13 parties it was contended by the appellant that these charges to each party in the financial year was falling in the limit of Rs. 20,000/- and in the financial year relevant to assessment year 2005-06 the total payments to one party never exceeded Rs. 50,000/- in the whole financial year. Keeping in the above facts and circumstances the ground no. 1 is allowed.”
Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us.
Before us Ld. DR submitted that the bifurcation of material and labour expenses were not given at the time of assessment proceedings before Assessing Officer and no details with vouchers in support of labour expenses claimed for Rs.43,18,532/- were submitted at the time of assessment. Finally the Ld. DR requested to restore the matter to the AO and relied upon the order of AO. On the contrary, Ld.AR submitted that all the material and labour expenses have been duly cross verified u/s 133(6) of the Act. The Inspector of income tax has also confirmed the expenses of material expenses and labour expenses. Ld.AR relied on the order of Ld.CIT (A).
From the aforesaid discussion, we find that the labour expenses were disallowed on account of violation of TDS provision u/s 194C of the Act. But Ld.CIT(A) granted the relief to the assessee by observing that the labour charges claimed by the assessee was inclusive of material purchase expenses. Now the issue before us is as to whether there is any violation of Section 194C or not. We find that the material expenses embodied in the labour expenses was duly cross examined u/s 133(6) of the Act and the Inspector of income tax has also provided the positive report with regard to material and labour expenses. In our considered view, the expenses as claimed by the assessee have been duly verified from the available records. Simply the purchase expenses claimed under the wrong head “labour Charges” does not attract the provision of TDS. So we find no infirmity in the order of Ld.CIT(A) and the ground raised by the Revenue is dismissed.
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 5 The 2nd issue raised by Revenue in this appeal is that Ld. CIT(A) 7. ignored the AO proposal made in the remand report for disallowing certain portion of labour charges.
During the Remand Report proceedings, the AO has duly verified the purchase bill of materials as well as labour expenses u/s 133(6) of the Act. An Inspector of income tax was also appointed to verify that the purchases are genuine or not. The Inspector has submitted a positive report. The total labour expenses claimed by the assessee during that assessment year was Rs.43,18,532/-. This amount was paid to the labourers who belonged to different villages. Their ledgers were checked. Out of this total amount assessee could not produce the vouchers and supporting documents to the tune of Rs.39,34,143/-. The vouchers were not having the complete address of the labourers. So the AO in his remand report to Ld. CIT(A), urge to disallow certain portion of labour charges claimed by the assessee. However, Ld. CIT (A) has disregarded this plea and deleted the addition made by AO.
Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us.
We have heard the rival contentions of both the parties and perused the materials available on record. We find that at the outset it was observed that the AO purposed to the Ld.CIT(A) to disallow certain expenses of labour charges on the ground that the supporting vouchers were not furnished at the time of remand report. However, this issue was not raised at the time of original assessment by the AO. From the facts, we find that the AO has not pointed out any specific defect for the expenses claimed by the assessee but proposed to make the disallowance on ad hoc basis. We find no substance in the argument of AO and therefore we uphold the order of Ld. CIT(A) and ground raised by Revenue is dismissed.
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 6 9. Next ground is as regards to Ld. CIT(A) allowing relief to the assessee on account of advertisement expenses of Rs.7,18,401/- u/s. 40(a)(ia) of the Act. During assessment proceedings it was observed by the AO that the assessee has not deducted the TDS as per the provision of section 194C. Before the AO, assessee explained that most of the expense under this head relates to the purchase of gifts, souvenirs etc. for its clients and so TDS was not applicable. Assessee produced the ledger of the parties but it could not produce any bills /vouchers to support its claim and thus the AO has added disallowed this expense on advertisement & publicity.
Aggrieved, assessee preferred an appeal before ld. CIT (A) where it submitted that all the relevant bills and supporting vouchers were produced to substantiate its claim. AO while preparing the remand report cross verified these transactions by following the procedures described above on Page no. 2 last paragraph. These transactions were duly confirmed by the respective parties. So the Ld. CIT (A) allowed the assessee to claim these advertisement expenses by observing as under:- “From the above report of AO it is evident that the nature of the above expenditure incurred was for purchases of gifts and souvenirs article and accordingly section 194C was not applicable on this purchase of material goods.”
Being aggrieved by this order of Ld. CIT Revenue is in appeal before us.
Before us both the parties relied on the orders of Authorities Below as favourable to them. We have heard rival contentions and perused the materials available on record. From the above discussion we find that advertisement expenses claimed by the assessee was disallowed by AO on account of violation of provision of Sec 194C of the Act for non deduction of TDS. Later on these expenses were cross verified by the AO u/s 133(6) of the Act. The Inspector of Income tax has also given a positive report and Ld.CIT(A) has given the relief to the assessee. We find that the advertisement expenses claimed by the assessee were mostly in the nature of purchases of
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 7 gift articles which were duly verified with the available records. Hence the assessee was not liable to deduct TDS under the head “advertisement expenses” of Section 194C of the Act. In view of this matter, we find no infirmity in the order of Ld. CIT(A) and this ground of Revenue’s appeal is dismissed.
Next ground is as regards to Ld. CIT(A) gave relief on account of consultancy charges of Rs.6,93,400/-. The assessee has claimed consultancy expense during the relevant assessment year. The AO found that there has been the violation of Section 194J of the Act on account of non deduction of TDS. The assessee submitted that it was not liable to deduct TDS as well as no any non compliance of TDS provision was noted down in the Tax Audit Report. AO did not accept the explanation given by the assessee and disallowed this expense u/s 40(a)(ia) of the Act.
Aggrieved assessee preferred an appeal before CIT(A) where a list of 42 persons to whom consultancy charges were paid was submitted in support of his claim. Again the AO has followed the procedure already explained on page no.2 at last paragraph of his order for taking the remand report. The AO after cross examination found that these expenses were actually paid to some technicians who were employed on temporary contractual basis. On the basis of remand report, Ld.CIT(A) has allowed consultancy charges amounting to Rs. 6,93,400/- as the amount paid to the parties was less than the financial limits laid down as per Section 194J(i) of the Act.
Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us.
Before us both parties relied on the orders of Authorities Below as favourable to them. We have heard the contentions of both the parties and perused the documents available on record. From the above discussion, we find that the consultancy charges were disallowed by the AO on account of violation of Section 194J of the Act and Ld. CIT(A) has granted relief to the
ITA No.2326/Kol/2013 A.Y. 2005-06 ITO Wd-3(4) Kol. v. M/sAmiya Corpn (I) Pvt. Ltd Page 8 assessee by observing that the consultancy charges paid to different parties were within the financial limits laid down u/s 194J(i) of the Act. Now the issue before us is as to whether there is any violation of Section 194J of the Act or not. After going through the entire discussion, we are of the considered view that the expenses claimed by the assessee under the head “consultancy charges” were duly verified with the available records u/s 133(6) of the Act. There was no any violation of Section 194J(i) of the Act as the payments made were within the financial limit of the Act i.e. Rs.20,000/-. In this view of the mater, we find no infirmity in the order of Ld. CIT(A) and this ground of Revenue’s appeal is dismissed.
Last ground of Revenue’s appeal is general in nature and does not require any adjudication.
In the result, Revenue’s appeal stands dismissed. Order pronounced in the open court 11/05/2016 Sd/- Sd/- (N.V.Vasudevan) (Waseem Ahmed) (Judicial Member) (Accountant Member) Kolkata, *Dkp �दनांकः- 11/05/2016 कोलकाता । आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-ITO Ward-3(4), P-7, Chowringhee Squre, Kolkata-6 2. ��यथ�/Respondent- M/s Amiya Corporation (I), Pvt. 5A, Orient Row, Kolkata-17 3. संबं�धत आयकर आयु�त / Concerned CIT Kolkata 4. आयकर आयु�त- अपील / CIT (A) Kolkata 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड� फाइल / Guard file. By order/आदेश से, /True Copy/ उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, कोलकाता ।